Has private nuisance lost its traditional flexibility as an independent tort?

Nicholas & Others v. Thomas & Others [2025] EWHC 752 (Ch) is a significant case which identifies the approach to be taken in establishing a private nuisance concerning ‘sensible’ injury to the amenity of land, subsequent to the Supreme Court decision in Fearn v. Tate Gallery [2023] UKSC 4 (interference with privacy experienced by flat dwellers near to the Tate Gallery viewing platform).

In fact, this High Court case does a great deal more than that, illustrating the breadth of the scope of nuisance, its overlap with negligence and the basis for the assessment of quantum where the injury in question is connected with chattels (usually characterised as consequential loss). The case is reported at [2025] EWHC 752 (Ch), a judgment of HHJ Russen KC dated 8 April 2025.

The facts

Nicholas v. Thomas was “the result of a bitter dispute between neighbours … all of them living and … operating … their businesses next to one another. The location is [a] hamlet … only a few miles short of Land’s End”.

The claimant company ran a business breeding falcons, the building of their aviary having been completed by July 2022. Since October 2020, the defendant company owned the neighbouring agricultural land.

As to the claims themselves, these concerned eight individual allegations of nuisance over a period of about four months in 2022 (also characterised as negligence), with damages claimed excess of £1.5m. Six of the claims were proved. There were also 35 allegations of harassment, none of which met the “grave standard of misconduct” required to meet the Protection from Harassment Act 1997. £258,500 was awarded in damages, an injunction was refused and all counterclaims were dismissed.

The first two successful nuisance allegations concerned repeated or regular activities, namely operating a scaffolding business over four months, involving a noisy crane, and depositing large stones and soil which also created noise. Other claims were about noisy activities on individual dates some of which constituted a visual threat to the birds. The individual defendant was also found personally liable for the tortious acts committed by the company defendant (the legal reasoning of which is nicely summarised but not further discussed here).

Are nuisance and negligence still distinct torts?

These type of claims in nuisance have their predecessors in a line of cases in which malice is at the centre. These notably include Hollywood Silver Fox Farm Ltd. v. Emmett [1936] 2 KB 468, in which the defendant farmer sent his son out with a shotgun to his border with the claimant silver fox breeder maliciously to ensure that the vixens aborted when shots were fired. Other such claims include Keeble v. Hickeringill (1706, about shooting at ducks in a decoy pond) and Christie v. Davey [1893] 1 Ch 316 (an engraver and family who mimicked the musical activities of their neighbours by banging on trays and “rapping”, as it was put, on the party wall). In Nicholas, HHJ Russen KC did not find malice proved. He said that: “I am not persuaded that [the defendant] has established that the proven acts of nuisance involved malice as opposed to carelessness” (para.394, emphasis added).

A substantial amount of the judgment was concerned with the question whether the defendants should have foreseen that falcons could have been impacted by the types of noise they experienced or the sudden and unusual sights in their line of vision, such as that of cranes. 

It is difficult, if not very difficult, to a find any earlier nuisance case concerning a ‘sensible’ injury to land (ie by way of noise, dust or smell), which involves a close analysis of the issue of foreseeability. The Wagon Mound (No.2) [1967] AC 6127 and Cambridge Water v. Eastern Counties Leather plc [1994] 2 AC certainly established that foreseeability of harm of the relevant type is an essential element of liability in all types of nuisance. But this is, in essence, an issue which goes to remoteness and which tends to be relevant only where there is a question as to economic loss, i.e. those cases of private nuisance where there is physical damage to property. To that extent, as with nuisances determined by reference to the Leakey measured duty of care, there is a direct equivalence with negligence (such as in Spartan Steel & Alloys Ltd v. Martin & Co Ltd [1973] 1 QB 27, as considered by the judge).

The singular fact about this case was that the impact on the claimants’ use of their land did not directly affect the claimants themselves (there was no conventional award of general damages), but was connected solely with the impact on the birds, the claimants’ chattels. Hollywood Silver Fox Farm Ltd was a similar case, but it depended on the finding of malice. Moreover, HHJ Russen KC did not examine the question whether or not the temporary activities of the defendant amounted to a single state of affairs, which is characteristic of an actionable nuisance. He also undertook a detailed inquiry into foreseeability and remoteness (relevant to the recoverability of damages stemming from the death of the falcons and a counterfactual universe in which eggs were undamaged and chicks grew into mature birds). It was unsurprising that the judge went on to reach the conclusion that “those same tortious acts under the law of nuisance support a finding of negligence” and that he had no difficulty in identifying a duty of care (applying Caparo Industries plc v. Dickman [1990] SC 605 and Robinson v. Chief Constable of West Yorkshire [2018] UKSC 4).

Taken incrementally, or item by item, there is little to criticise in this detailed judgment, but looked at in the round, the reader might properly conclude that there is really no difference today between private nuisance where there is a sensible injury to land and negligence. Stepping back, was damage to the falcons involving no direct inconvenience to the claimants really a private nuisance at all?

A two-stage test in private nuisance

It was unnecessary for the judge to reach a finding of malice when he concluded that the nuisance was proved. In so doing, he created and applied what is in essence a two-stage test which he “distilled” from the majority judgment in Fearn (para.53). 

First, HHR Russen KC established the proposition that: “any decision that the defendant’s activity is unlawful (and, therefore, constitutes an undue or unreasonable interference with the claimant’s enjoyment of his land) must at the first stage rest upon the twin-limbed conclusion that there has been a substantial interference with the ordinary use of the claimant’s land. 

Then, secondly, identifying an “exculpatory second limb of the test”, the judge continued: “The same notion of the common and ordinary use of land applies to the next stage of any determination of liability which is to consider the nature of the defendant’s activities upon his land. In the absence of malicious behaviour …, if they constitute no more than the common and ordinary use of his own land and are done with proper consideration for his neighbours – i.e. “conveniently done” in the words of Bramwell B [in Bamford v. Turnley] - then he will not be liable”.

Conclusion

There is much to consider in this first reported application of the decision in Fearn. In Fearn, there was a powerful minority judgment which warned against elevating assessments as to the “common and ordinary” use of land, especially on the part of the defendant, above an overall assessment of “objective reasonableness”. The judgment of HHJ Russen KC has arguably taken Fearn to its next logical step in establishing a blunt ‘two-stage test’. Time will tell whether the minority in Fearn were correct in warning that it will be more difficult, at least in some cases, to strike a fair balance between parties’ property rights according to traditional reciprocal principles of ‘give and take’.